CPLR Art 78 Flashcards by C P

7801- Nature of Proceeding

This is a special proceeding, which is used in regard to the following writs:

. Writ of ____________ brings up for review a record

Certiorari-

(certiorari- search the record)

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7801- Nature of Proceeding

This is a special proceeding, which is used in regard to the following writs:

Writ of ___________ - calls for a body or officer to perform a certain duty (mandates)

mandamus

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7801- Nature of Proceeding

This is a special proceeding, which is used in regard to the following writs:

Writ of ____________ - prohibits a body or officer from doing an act it shouldn’t do

prohibition

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7801- Nature of Proceeding

This is a special proceeding, which is used in regard to the following writs:

Writ of certiorari- ___________________________________________________

brings up for review a record (certiorari- search the record)

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7801- Nature of Proceeding

This is a special proceeding, which is used in regard to the following writs:

Writ of mandamus- ________________________________________________

calls for a body or officer to perform a certain duty (mandates)

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7801- Nature of Proceeding

This is a special proceeding, which is used in regard to the following writs:

Writ of prohibition- ________________________________________

prohibits a body or officer from doing an act it shouldn’t do

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7801- Nature of Proceeding

Such ARTICLE 78 proceeding cannot be used to challenge a determination, which is ______________ or, can be ________ by statute by the body or officer making the determination, or can be adequately reviewed upon ___________ (you must try to appeal first)

not final ….reheard ……. appeal

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7801- Nature of Proceeding

Such ARTICLE 78 proceeding also cannot be used to challenge a determination made in a _________or ___________ unless it’s an order punishing for ___________ committed in the presence of the court

civil action or criminal proceeding……. contempt

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7802- Parties

The definition of “_______ or ___________ “ includes every court, tribunal, board, corporation, officer or other person whose action may be affected by a proceeding under this article

body or officer

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7802- Parties

This proceeding may also be used for a person whose term of office may have __________ and may even join the _________________ in office of the prior person

Expired ……successor

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7802- Parties

(Bard) If the proceeding is brought to stop someone from acting ___________ or _________ of their authority, the person who is being ____________ (MUST/MAY) be joined as a party to the proceeding.

Without ….. in excess ……… protected …….. MUST

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7802- Parties

___________ this proceeding can be given to any person and other interested parties may intervene

Notice of

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7803- Questions Raised

There are only four questions that may be raised under this proceeding:

Whether the body or officer failed to _______________ enjoined upon it by law

perform a duty

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7803- Questions Raised

There are only four questions that may be raised under this proceeding:

Whether the body or officer proceeded or is about to proceed ___________ or ___________ of their jurisdiction

without or in excess

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7803- Questions Raised

There are only four questions that may be raised under this proceeding:

Whether a determination was made in violation of a lawful procedure or was _____________________________

arbitrary, capricious or an abuse of discretion

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7803- Questions Raised

There are only four questions that may be raised under this proceeding:

Whether a determination was made as a result of a hearing held even though there was substantial evidence provided to support a _____________

different finding

7803- Questions Raised

A proceeding to review the final determination or order of the state review officer regarding ____________ shall NOT be brought as an Article 78 proceeding, but rather shall be brought by a petition for a Special Proceeding under CPLR Article Four. (That’s deep in there, but could be a good question to see who made the effort, AKA YOU!)

children with disabilities

7804- Procedure

A proceeding under this article is a ______________ brought in the _______________ in any county within the ____________ where the respondent made the determination complained of or refused to perform the duty enjoined upon him

Special Proceeding ……. SUPREME COURT ….. judicial district

7804- Procedure

Take a moment to go to the statute CPLR 506(b) to see the exceptions particularly the proceedings against a justice of the supreme court or judge of a county court

7804- Procedure
Nevermind, through the magic of copy and paste…here it is for you
CPLR 506- Where Special Proceedings Are Commenced
Special Proceedings are commenced in ANY COUNTY WITHIN THE JUDICIAL DISTRICT where the proceeding is triable or in the case of:
1. ART 78 special proceeding (proceeding against a body or officer) - in any county within the judicial district where the allegation against body or officer occurred, or where the principal office of the Respondent is located
2. Proceeding against Justice of Supreme Court, Judge of a County court, then in the appellate division of the judicial department where action originated or adjoining department based on unavailability

7804- Procedure

Take a moment to go to the statute CPLR 506(b) to see the exceptions particularly the proceedings against a justice of the supreme court or judge of a county court

7804- Procedure

Time for service of notice of petition and answer is as follows:

The notice of petition and petition shall be served at least ______________ before the time at which the petition is noticed to be heard
The answer and supporting affidavits if any shall be served at least ______________ before such time
A reply if any shall be served at least ______________ before such time

TWENTY (20) days…………. FIVE (5) days……….. ONE (1) day

So remember this special rule: 78: 20-5-1

7804- Procedure

Take note: It is possible for the court to allow an “____________ “ to be served in lieu of notice of petition, in which case service is in a time and manner as specified in such order

order to show cause

7804- Procedure

*In any proceeding against the state, the ___________ must also be served upon the assistant attorney general at an office of the attorney general **

attorney general

7804- Procedure

The pleadings herein ________ and are to be ____________

(PAR) ……. verified

7804- Procedure

The body or officer shall file with the answer a ________________ of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court.

certified transcript of

7804- Procedure (Bard)The respondent can raise a legal objection in their answer or by a motion to dismiss. If the motion is denied, the respondent can file an answer within ______ . The petitioner can re-notice the matter for hearing upon ____________ notice, or the respondent can re-notice the matter for hearing upon ___________ notice.

5 days.... 2 days' …. 7 days'

7804- Procedure If a triable ______ is raised in a proceeding under this article, it shall be tried forthwith

issue of fact

7804- Procedure - (Bard) If a party to a pending action or proceeding files an Art 78 proceeding against a judge or judicial hearing officer who granted or denied relief in that pending action or proceeding, the petitioner must also serve a copy of all pleadings and papers on all other parties to the pending action or proceeding if not already named as a respondent in the Art 78 action. - All such parties will then be designated as respondents. - The judge need not appear in the proceeding in which case the allegations of the petition shall not be deemed admitted or denied by him, but they will still be bound by the proceeding - If such respondent does appear he shall respond to the petition and shall be entitled to be represented by the attorney general. - If such respondent does not elect to appear all other parties shall be given notice thereof.

7804- Procedure A review of CPLR 217 reminds us the statute of limitation for a proceeding against a body or officer is only ___________ (THAT’S NOT EVEN A HOCKEY SEASON!)

FOUR (4) MONTHS

7805- Stay On motion of any party or the court on its own initiative can stay the proceedings or enforcement of any determination under review except for an order granted by the ___________ may be stayed only by an order of the ___________or the court ____________

appellate division.......... appellate division …..... of appeals

7806 – Judgment The judgment may _______ the petitioner the relief to which he is entitled OR may ________ the proceeding either on __________ or with leave to ________

Grant...... dismiss..... the merits …...... renew

7806 – Judgment If the proceeding was brought to review a determination, the judgment may ________ or _______ the determination in whole or in part or modify it, and ______ or _____ certain action by the respondent

annul or confirm …. direct or prohibit

7806 – Judgment (Bard) Any restitution or damages awarded to the petitioner must be related to the _______ they are seeking, and must be the same as what they could get in a separate lawsuit in the __________ against the same body or officer in their official capacity.

main relief........ supreme court